November 19, 2007

Fieger Makes Allegations about Arkansas

by emptywheel

I admit--I'm getting sucked into the Geoffrey Fieger case. I will have more to say, but the short version is this:

The government alleges that Fieger and his partner got employees from their law firm to donate to John Edwards in his 2004 election. And then, the government further alleges, they reimbursed those people. From the government's perspective, Fieger laundered a lot of money to give big dollars to Edwards. From the perspective of this Administration's seeming pattern of politicized prosecutions, they went after Fieger (and other trial attorneys) to disincent trial lawyers from making political donations.

The big scandal (besides the possibility that BushCo is prosecuting Fieger as part of a political prosecution) is that it appears the government may be using tools designed for national security prosecutions in support of a campaign finance investigation--basically, Fieger alleges the government is abusing the tools Congress gave them to investigate terrorism in order to punish Democratic political activities. And he's trying to get the evidence to prove that case.

At present (Fieger's trial is due to start at the beginning of December), Fieger is dealing with four issues related to selective prosecutions.

BushCo got a bunch of subpoenas for financial information--apparently
under grand jury subpoena--without having to reveal those subpoenas;
Fieger's team thinks they used National Security Letters or some other
improper subpoena to get that information

Bush's DOJ sent a small army of people to search Fieger's firm (and his employees' homes), serious overkill for a white collar crime investigation

The top three people in the USA office in Eastern Michigan recused themselves from the case; Fieger's team thinks there's some hanky-panky behind the recusal

The only investigation into campaign finance violations for the 2004 Edwards campaign that ended in a civil--as opposed to criminal--penalty was a lawyer in Arkansas--but the agreement was signed at the same time that Bud Cummins was fired, a coinkydink that Fieger alleges was the reason Cummins was fired

Here's the court's opinion summarizing the last three of these issues (look on page 1 for Judge Borman's description of three of four of these issues, he reviews these issues in camera before making the ruling on these three issues; he refuses to show Fieger the subpoenas in another order). On the issue of the army of FBI agents to investigate the firm, Borman allows Fieger to see dates of such overkill investigations, but not the names or details. On the issue of recusal, he orders the government into further discussion of the reasons behind the recusals. And on the issue of the one trial lawyer campaign finance investigation that did not end in criminal sanctions, Judge Borman refuses to provide the name to protect the innocent accused.

Recusals

Here's the language Judge Borman uses to ask for further information from the government on the recusals of the top three people in E MI's USA office.

Finally, as to the Government request to seal the basis for the recusal of the three U.S.Attorneys, the Court will conduct additional ex parte, in camera, on the record, discussion with the U.S. Attorney and the Justice Department attorney on this case, before ruling on that issue.

This is not a case about national security, and the reasons for the recusal of Murphy, Tukel, and Berg do not bear any semblance of “national security” or “safety of witnesses or jurors.”

From all accounts, it appears that Murphy, Tukel, and Berg actively participated in this case for many months before secretly recusing themselves and allowing their agents to continue. If these gentlemen had any conflicts that prevented them from prosecuting this case (and seemingly they do), then that same conflict must be revealed. It makes no sense for the government to claim some sort of vague, undefined “compelling” secret interest that should allow them to continue keeping these secrets. If the government wished to indict Mr. Fieger, then they did so with all of the demons in their closet subject to open judicial scrutiny through the adversarial process.

Stephen Murphy is the USA for Eastern Michigan; Jonathan Tukel is the Senior Counsel to Murphy; Special Assistant USA Leslie Berg is another lawyer in the Eastern District Office. All three have recused themselves from this case, though they refuse to tell Fieger why. Frankly, I don't even know what he thinks is going on. But, as Fieger's team says, these attorneys were closely involved in the investigation. And then they recused themselves, without revealing what problem forced all three to recuse at once. Fieger is suggesting he has good reason to want to know why three people from the USA's office recused themselves part way into the investigation.

The Civil Settlement

Fieger also argues that he deserves to know the details of other Trial Attorneys investigated for campaign finance violations relating to John Edwards. Earlier, he asked if any other Edwards donor had been accused of campaign finance violations without a criminal referral. Upon learning there was one, Fieger makes the following argument, suggesting the answer actually strengthens his case.

This problem is further magnified by the government’s ex parte submission regarding “the identity of an individual Plaintiffs attorney who was investigated by the federal government but not prosecuted.” Mr. Fieger has reason to believe the government is referring to Tab Turner, an attorney from Arkansas who was also harassed by the Department of Justice based on his political support for John Edwards.

If Mr. Fieger’s suspicions are correct, the facts of the Tab Turner case actually strengthen Mr. Fieger’s claims of vindictive prosecution. For instance, it is believed that the United States Attorney for Arkansas, Bud Cummings, was fired because he refused to bring specious campaign finance charges against Mr. Turner. The Department of Justice, through Noel Hillman, figured they would just take Turner into Washington D.C. and indict him there since Cummings was unwilling. Shortly thereafter, Cummings was fired and replaced by a protégé of Karl Rove and Turner settled his case civilly with the Federal Election Commission. If Mr. Fieger is correct, then the Court has a duty to be informed of all of the facts surrounding the government’s ex parte submissions.

In other words, Fieger alleges, the sole case where an Edwards trial lawyer donor was investigated--but not charged criminally--happened within days of the time when Bud Cummins was fired and it happened in Cummins' district. Cummins was fired on June 5, 2006; the FEC complaint was settled on the same day, with the settlement filed on June 21. Fieger's suggesting that Cummins was fired (in June 2006) for refusing to criminally charge Little Rock lawyer Tab Turner for campaign finance violations.

Understand--I can't speak to the merit of Fieger's allegations (and he is certainly trying to match criminal allegation with criminal allegation, rather than deny the truth of the allegation itself). But they're certainly intriguing issues--particularly if he has real reason to believe that Bud Cummins was fired for refusing to charge an Edwards donor [oops--fixed thanks to bmaz].

Comments

EW

I read your blog at the same time as I watch "The Monarchy" on TV Ontario. This deals with the beheading of Mary Queen of Scots.
I conclude that, based on your post, and your next post regarding Scottie, that the Bush Administration would have fitted right into those medieval times.

There are not that many ways that subpoenas duces tecum for financial information against a defendant in what is effectively a financial fraud case against him are made "secret". National Security Letters (NSLs) are certainly one method, but that is not necessarily consistent with them being "grand jury subpoenas". The court under which the grand jury is impanelled may enter an order, upon an ex-parte showing of cause by the government, sealing the subpoenas; but normally you would expect the trial judge to either rule that gives way to Fieger';s right to defend himself, or, at a minimum, give a better explanation of why they are secret. Don't see either of those here. Need to read the links completely to see if there is better indication of the grounds for this.

I don't see how the info on the "civil settlement" is reasonably withheld from Fieger. Unless the court records are sealed in the original case (hard to see any basis for this), how the hell can you deprive Fieger of this information? This is especially the case if the subject of "the one case" is indeed Tab Turner, a name and situation Fieger, and the public, already knows about. Thsi is flat goofy.

As to the recusal information, same thing; i.e. hard to see how Fieger is not entitled to it. The only reason Fieger would not be entitled to the recusal info would be if the basis for the recusals didn't concern Fieger, but some other sensitive case; but if that were the case, the Court should just simply say it reviewed the info in camera and is convinced the basis is unrelated to Fieger and not germane to his defense.

If Fieger has an even remotely cognizable claim for defense under the theory of selective and/or malicious prosecution (and he does), Feiger is flat out entitled to all this stuff.

EW, I have to re-iterate what Orion said about MS, Scott Horton and I think BradBlog have followed that case closely. It was a trial lawyer who gave heavily to John Edwards and also a Dem judge who usually ruled for plaintiffs. And it's gotten pretty darned ugly and partisan and the judge had to step down from the bench for a few years. I wouldn't be suprised if the MI, MS and Seligman cases in Ala were all of a piece. There's something incredibly rank and vile at the DoJ, and a new head won't fix the problem til this disease is excised completely.

There's an overarching leit-motif in all of this, and I think you're just the woman to pull the threads. Another book in the offing, perhaps?

That last paragraph was my heartfelt response to the ugly poster in the McLellan thread.

You'd probably need to read more than the links here. As to the subpoenas for financial info, I think that is what has happened, at least in this court--the judge has reviewed an ex parte explanation and decided Fieger doesn't get him; though that's when he threw in the grand jury subpoena excuse, which is just weird.

As to the civil stuff: yeah, unless the govt is arguing that at least one Edwards person got off entirely. And, in fact, in teh Tab Turner case, there were several lawyers associated with him whose charges were dismissed entirely. It may be they're arguing innocent accused in that case for the secondary lawyers, who may have helped finalize the case against Turner himself. But then, if Tab Turner is the case, in general, they ought to at laest tell Fieger that. Turner came up earlier, in a govt filing, so it may well be the case.

Yes, it appears that the judge does believe Fieger has reason to know why they recused, which the govt has refused Fieger in direct appeals to DOJ. But he (the judge) seems to grant the govt's argument, at least partially, for keeping it secret. I look forward to his ruling on that issue--it could get interesting.

In other filings, btw, Fieger has pointed to a number of questionable prosecutions of Dems here in MI.

ew, how does the fieger charges compare with the mitchell wade case charges here: http://www.fec.gov/press/press2007/20071031mzm.shtml

it sure looks similar to me, and it looks like he got a 1 mil fine with no jail time for this.... what is your opinion on this? is it fish and fowl or the same?

this looks and smells funnier every day, but geoffrey is no poster child for the meek, so he gets little media sympathy.

and how ironic this looks to me more and more part of the fired us attorney scandal.

too bad about your wolverines, ew, they sure eat their young and their coach with no compunction. I guess the nytimes story on tenured prof's going by the wayside applies to safe coaches, even when they won a title....

I can barely say the words detroit lions of late. they do look more and more familiar every game. but hope springs eternal and maybe we can put the big hurt on the pack... (sure....lol)

National Security Letters (NSLs) are certainly one method, but that is not necessarily consistent with them being "grand jury subpoenas".

What I thought Fieger was getting at was that NSLs were used to go on fishing expeditions to find anything they could - not on national security matters but to dig dirt on financial opponents. Then they backtracked and requested GJs and GJ subpoenas to legitimize obtaining the info they had already illegitimately obtained.

I would suspect that, in a large firm with varied, non-botique, clientel, there is going to be someone or some aspect of the firm's practice that Gov can use to try to make the claim that the NSLs were being used legitimately for national security reasons bc of suspicions against a client of the firm or the firm itself with respect to payments from certain clients, etc. So the bootstrapping would be that, say the firm represents a client (like an islamic charity) and NSLs were originally issued in respect of an ultra-secret national security investigation on that front, then if they turned up evidence of crime - albeit bc they were overbroad and there was probably never any real undlerlying investigations the NSLs were associated with - then a) that would form the basis of the GJ subpoena request and b) that "source" for subpoenas to issue would have to be kept secret for "national security" reasons bc the sky will fall if someone has to describe what they were looking at originally that led them to delve into all of a law firm's finances with NSLs.

Something along those lines would be my spec.

The recusals are a mystery though. Unless, perhaps (and I don't have any grounds to believe this, just trying to think of something that would fit the bill) the recused lawyers are under some kind of internal investigation for their actions in the intial steps of the investigation and whether there was any true national security investigation to support the original use of the NSLs.

If that would be the case, then if they are being internally investigated for wrongdoing on the case, they should recuse. If that premise were true and the investigation into their possible wrongdoing will involve internal examination of the facts and circumstances of a real or purported national security investigation from which all of the rest of this has supposedly spun off, then I guess I could see a judge sealing it, at least for a period of time and some parts possibly redacted for much longer.

Actually, Fieger states pretty convincingly that, after Cox couldn't indict on his fishing expedition, he handed over the investigation to the Feds to see what they could make of it. So it would be 1) political from the start, and 2) campaign finance from the start (note--I'm talking about the Cox fishing expedition into the judicial campaign in 00, not the extortion related to Cox's sexual escapades in the jury box of the court house).

In which case (Fieger argues), the NSLs would always be inappropriate. I'm not aware of any case that could be construed, even in the worst BUshCo logic, to be national security. Unless Kervorkian is a threat to national security...

Mary, that was basically what I meant with my fairly inarticulate "not consistent" phrasing, i.e. NSLs are not any part of GJ discovery themselves, and it would be inappropriate to be using them as a basis for what would otherwise appear to be regular GJ process. As EW seems to feel, I cannot envision any way in which, if NSLs were involved in the Feiger investigation, it was appropriate to do so. What wigs me out is that the court, Judge Borman, seems to grasp all the parameters on these issues, but is treading an inexplicable middle ground that doesn't seem to really comport with proper protection of Fieger's due process rights as the defendant. It just doesn't sit right....

I'm not aware of any case that could be construed, even in the worst BUshCo logic, to be national security

I think that's where the spinning is taking place though. We aren't aware - but the Feds might well be claiming that they did have some kind of legitimate national security investigation that prompted and initial raft of NSLs. I'm shooting in the dark, as I don't know anything about Fieger or his firm, but even a 50 lawyer firm in a big city is going to have all kinds of clients; all kinds of political and social connections of partners, associates, paralegals, staff, etc.

NSL info that gets turned over is pretty broad based and not redacted from the source to the DOJ(FBI) - if an NSL letter went out on one client of the firm and that financial info showed payments to other people and so NSLs went out on them - - - spider webbing out from the central point - - - they may be claiming that it was an investigation of someone along those lines that eventually, as the web widened out, began to bring in some financial info involving the firm and its payments. For example, the Abramoff/court payoffs investigation IIRC involved laundering money through a lawyer in the states.

So they feds might try to claim that maybe they had to track large sums from a client being investigateed to the firm, with reviews to see what the firm was doing with monies to see if it was laundering and which then, by "pure happenstance" revealed a series of odd payments to employees, etc. that involved a different kind of laundering - not national security based but campaign finance based.

So that would be the kind of thing I'd be making guesses on that the feds are using for cover and that a court is giving them some initial whiffle room on. Was there a legitimate target initially? If so, which I doubt - but by the law of averages you have to think eventually someone in DOJ is going to be shown to have acted with a scrap of integrity or told at least the minimum of truth to the tribunal- they could legitimately want to make sure that we are not aware of that underlying case which does involve national security. And a court may be giving them lots of rope there - especially if there is an underlying internal investigation being handled so as to protect the national security issues being raised as cover.

I have to admit to low interest in the Fieger case as compared to other things, but I guess it would be interesting to see how the recusals might have tied to the beginnings of any kind of serious investigation into the uses of NSLs at DOJ. Apparently Mueller was comfortable with allowing them to run amok for awhile, but eventually there was a harder look at them. If recusals started happening about the time an internal investigation into the misuse of NSLs geared up - well, that would make you wonder.

I just went poking around to follow that very thread, Mary. Fieger has represented Arab-American clients; not difficult to do, given Fieger's proximity to the largest percentage of Middle Eastern Americans in the U.S. in Dearborn, MI. There was a high profile police brutality case in August of 2001 in particular that might have provided enough rationale to the Bushies to use NSL's on Fieger's communications.

Mary - Again I agree with your reasoned hypothetical about how the case got to the point it is and why the Judge may be "giving them lots of rope there". The problem I have with this is that confirmation that the government really did have some "national security" reason for utilizing NSLs, by it's very nature, also confirms Fieger's argument that he is likely being prosecuted based on an improper evidence, or at a minimum, the fruits therefrom. If your hypothetical is indeed correct, the Court is aware of the improper cross-pollination of cases by the Government and is duty bound not to blithely shine it on in the face of Fieger's due process rights.

I would also add that it would be even more important for the Court to address this properly because of the implications that the Government could be improperly using other information gathered by NSL to invade the province of the attorney-client relationship between Fieger and his clients.

IANAL, but this looks very bad for lawyers generally. If having once represented a dodgy client is enough to open the door to allowing info obtained via NSL or warrantless wiretap into evidence, then (1) it's open season on nearly all attorneys in the US; and (2) even any 'super squeaky clean' law firm is vulnerable -- all it takes is an 'unclean' person secretly working for the gov't to hire that firm, on any flimsy pretext. Are we seeing another way (i.e. different from Musharraf's) to neutralize all the lawyers (or different from Shakespeare's way, for that matter)?

I'm no expert on NSLs, but did they get the same treatment as FISA surveillance with respect to the "wall" and the new found "sprung from Jove's forehead" ability to now use info that was collected on less than probable cause to believe that a crime is being committed to now prove the commission of a crime?

If so, I think the crossover may have legislative branch blessing, as well as Executive Branch blessing, plus the blessing of the FISC appellate court in their weird In re Sealed Case decision. That doesn't mean it has Constitutional blessing, but it may show why a district court might not leap to invalidate anything too quickly.

Again, if they could claim (and I wonder about any such claims) that the original investigation that the NSLs were issued under was for a legitimate (ha) national security reason, and if they got all their info voluntarily from the providers, and if that info "just so happened" to show evidence of non-national security crimes - well, that is pretty much what the whole "bring the wall down, Joshua" battle was over and it was, IMO very unfortunately, resolved in favor of run amok vs. oversight and consequences, at least in the FISA surveillance area and I have to think that probably has some application to NSLs.

I still think that under a sound Constitutional approach, that would be wrong - but so far the authority out there pretty much indicates that the Exec is joined by Congress and at least by the FISC appellate court in saying, 'eh, who needs criminal probable cause when you can go on nat. security fishing expeditions - with NSLs not even requiring any showing to anyone of any kind of probable cause - and then just smirk that "the wall" had to come down and once it did, you could use that info for any purpose you wanted, including criminal prosecution. Especially since it was "voluntarily" handed over.

So yeah - I think you are absolutely right that even saying there were NSLs at the originations steps means they used national security as just a cover for the criminal fishing expedition, but I also think that's what the Patriot Act specifically allowed (for FISA obtained info at least - as long as there was any faint whiff of a claim that there was "some" foreign power/nat security reason for the invasions into personal information, then that kicks the door wide open to the primary purpose being criminal investigation, without criminal probable cause.

Which, btw, I think Sux.

The only thing that ever really sold me on why the wall should come down (as opposed to why the internal handling of the mechanics of separation of foreign espionage from domestic prosecution info needed to change) was some stuff written by now departed David Kris, who made some pretty good presentations to the Senate Judiciary Committee. Still, they could have addressed what he raised and still provided an avenue for procedure and an oversight mechanism which would have prevented foriegn surveillance/nat sec from being used as cover up for domestic fishing. They just didn't.

Hmmm - That is exactly my point at 14:50 above, and a significant part of comment at 14:43. It is no secret that the neocon/conservatives in this administration don't like trial lawyers and are eager to take them out (see the bogus crap under tort, reform), but there is a very disturbing pattern emerging about bogus prosecutions of lawyers. Much of this still appears to be under the national radar. We are discussing Fieger here, and you know about the Alabama and Mississippi cases; but there is a lot more out there I think. Recently I was looking up some stuff on the recent indictment of Orange County California Sheriff Carona (that case itself involves, and in a way emanates from, and leads to further, federal investigations of a law firm) and I had a chance to look at the press releases from the US Attorney's office in Los Angeles for the last 2 to 3 years. Press releases from a US Attorneys offices are always a good read on what the office is interested in, and pushing, policy wise. For instance, in Arizona, they historically emphasized drug and immigration fraud, although I haven't looked lately. At any rate, I discovered a shocking number of cases against lawyers and law firms; definitely a trend. It is not just that there were so many different cases, but that they were making a big deal about it and creating press releases for fairly routine tax fraud cases and things like that. I really think there is a lot more of this going on than we realize from the clueless national media.

Mary - My read is that the status of using information collected by way of NSL in traditional criminal prosecutions is currently unclear. I fully admit that the argument you are describing (but not endorsing) is there to be made and is being made by some in the authoritarian sector. As you know, and I have tried to warn everyone else that reads any of the bunk I post, I am a stickler for adherence to Constitutional due process in criminal prosecutions. (Hell, I still fully maintain that, despite his apparent guilt, the murder case against OJ Simpson should have never gotten to trial because it should have been dismissed on 4th Amendment and prosecutorial/police misconduct grounds long before trial) So, that having been said, I am having none of that. If the evidence was intentionally gathered by the government, in the absence of probable cause, it is poisoned fruit. End of story for me. But here is the better point of contention as to the Fieger case. While your (and my) feared argument they will make may eventually, regrettably, hold the day, that is not the point. The point is that Feiger is entitled to make his defense and have it ruled on; which means he is entitled to the evidence. Even if his argument fails in the trial court, he is entitled to the discovery to make it and make his record for appeal.

I think you're right bmaz - he should get to make the arguments and I would really like to see a judicial smack down of the whole concept that they can go on these "national security" fishing expeditions when they don't have anything for a criminal warrant. The set up of the FISC and its review panel is such that you can't really take things "to the next step" bc the victim of the criminal surveillance isn't really a party and doesn't have an advocate or an avenue. So it would be nice to see a case like this one go up the appeals chain and set the ground rules. IMO.

... expressed frustration over the recent disclosure that the government had misled her at the Moussaoui trial by denying the existence of any tape recording of high-value Qaeda detainees. In a Nov. 9 filing with the court, the government acknowledged that three such tapes did exist but said the prosecutors at the Moussaoui trial had not known of them.

I'm wondering how many tapes really exist, how many DID exist and were destroyed and how many thumb drives etc. are floating around - - plus how many tapes exist from proxy torture interrogations.

I am figuring Mary and bmaz read Marero SDNY September 2007 on NSLs; for some reason I have two versions, the one that ACLU provides is scanner skewed, and bitmapping increased size to >2MB, but the tnh archived copy is 260KB though each is near the same length at 103pp. I have yet to read much more than the contemporaneous evaluations that it was a useful and in places interesting historical discussion in the opinion. I noticed the conversation resuming elsewhere, and even had tacked a link to the Brinkema comment in the Paulose thread, though have yet to find any written statement in that VA case. There are some similar glimpses in a funny review of the retirement reintegration into the workforce of a supervising judge at Gitmo that seems like a permutation of the same hasty nondiscovery discovery rule guides throughout, though the course of the latter dashed upon the noncathartic rocks of war crimes trials is a cycle which is stereotypical of where such theater among nations has led historically, in eluctably and likely is best without much comment.